Domestic Relations - Barry B. Mcgough and Gregory R. Miller

• Publication year: 2002

Domestic Relationsby Barry B. McGough^* and Gregory R. Miller^**

Of the domestic relations appellate cases decided during the survey period, seventeen are digested here.¹ While legislative efforts focused on the passage of the Uniform Child Custody Jurisdiction Enforcement Act,² the appellate courts tackled a range of issues.

I. Divorce: Jurisdiction

The Georgia Supreme Court addressed several issues concerning procedure in divorce cases. In Midkiff v. Midkiff,³ the supreme court set aside a divorce decree, holding that Georgia did not have jurisdiction.⁴ The parties married outside of Georgia and lived in Florida before moving to Germany, where the husband was stationed in the military.⁵ When the parties left the United States, the husband designated his mother's home in Georgia as his military "home of record."⁶ The husband had not resided in Georgia since he was a minor, and the wife had never resided in Georgia. When the parties separated, the wife returned to the United States, but she did not move to Georgia. The husband, still in Germany, filed for divorce in Georgia and served the wife by publication. The Georgia trial court granted the divorce and granted the husband custody of their three children. The trial court entered a later order transferring custody of the children to the paternal grandparents. The wife filed a motion to set aside the judgments, which the trial court denied.⁷

While a Georgia resident may obtain a divorce in Georgia after being a resident for six months,⁸ the court determined that the husband had never become a resident of Georgia.⁹ The court found that the husband's declaration of Georgia as his "home of record" for military purposes was not sufficient for him to establish residency.¹⁰ To change residency, a person must actually change the residence and express a desired intent to stay.¹¹ The husband never actually relocated to Georgia.¹² Because the court held that Georgia did not have jurisdiction to hear the divorce case, all awards contained in the divorce and subsequent modification were set aside.¹³

II. DIVORCE: NOTICE

The courts continue to show concern over whether parties receive proper notice. In Melcher v. Melcher,¹⁴ each party was represented by counsel and engaged in settlement negotiations through their counsel. The husband, however, did not file an answer in the case. The wife and her counsel scheduled a final hearing, but did not provide notice to the husband or his counsel. In fact, the wife scheduled the hearing on a day when the wife's counsel had requested a leave of absence. The wife obtained a final judgment in the husband's absence. The husband made a motion for new trial, which the trial court granted.¹⁵ While acknowledging that a defendant who fails to file an answer waives the right to receive notice of hearings, including notice of the final trial,¹⁶ the court held that due to the unusual circumstances of this case, the trial court did not abuse its discretion in granting the motion for new trial.¹⁷

The court, however, did not find such unusual circumstances in James v. James.¹⁸ In James the court affirmed the denial of the husband's motion to set aside the judgment.¹⁹ The husband was not represented by counsel, and no negotiations had occurred.²⁰

III. Child Custody: Jurisdiction

The exercise of jurisdiction in custody cases continues to be an issue in litigation despite the passage of uniform custody jurisdiction acts.²¹ The most common way a state obtains jurisdiction of a custody case is by being the child's home state for at least six months.²² The Uniform Child Custody Jurisdiction Act²³ allowed for certain exceptions, including the exercise of jurisdiction in emergency situations.²⁴ In In re J.S.J.,²⁵ the father, a Mississippi resident, had custody of the parties' child. The mother, a Georgia resident, sought custody in Georgia through a deprivation action, alleging the father had molested the child.²⁶ The court of appeals previously held that "if the emergency [pleaded] before the court developed in the home state prior to the time the child was brought into Georgia, Georgia courts should decline jurisdiction in favor of the home state, absent compelling reasons for the Georgia court to do otherwise."²⁷ The court did not find any compelling reasons for Georgia to exercise jurisdiction in this case (other than the mother's inconvenience).²⁸ The mother could have filed her action in Mississippi.²⁹

IV. Child Custody: Modification

Many states have enacted statutes addressing what happens when a custodial parent decides to move; however, Georgia has not done so. In cases in which the sole custodial parent moved, the appellate courts have held that the move was not sufficient grounds to modify child custody.³⁰ The same result was reached in cases in which the party designated as the primary physical custodian relocated.³¹ In Lewis v. Lewis,³² the court of appeals addressed the effect of one parent's moving when the parents were joint physical custodians and neither party was designated as the primary physical custodian.³³ The three judge panel held that in such a situation, the move would be considered sufficient grounds for modifying custody.³⁴ The move interfered not only with the parties' visitation rights but with the "prima facie right to custody."³⁵ That the mother had the children with her for approximately sixty percent of the time and received child support was not enough for the court to recognize her as the "primary physical custodian."³⁶

V. Child Custody: Nonparents

Custody and visitation cases concerning parties other than biological parents continue to be a major source of litigation. In Burke v. King,³⁷ the supreme court applied the test it set forth last year in Clark v. Wade³⁸ in determining whether to award custody to a relative instead of a parent.³⁹ The relative must show by clear and convincing evidence that the child will be harmed by continuing custody with the parent and that it would be in the child's best interest to transfer custody to the relative.⁴⁰ In Burke the court of appeals held that the trial court blurred these legal standards and failed to support its conclusions with explicit findings of fact.⁴¹ The court remanded the case for a proper determination under Clark.⁴²

In Stalvey v. Bates⁴³ and In re K.R.S.,⁴⁴ the court of appeals considered the proper application of the test set forth in Clark.⁴⁵ In Stalvey the court held that the trial court erred in making a custody award to the maternal grandmother without first requiring clear and convincing evidence showing that the children would be harmed by remaining in the father's custody.⁴⁶

In K.R.S. the mother received custody of the child when she and the father divorced. Approximately four years later, the mother died and the father assumed custody. A few days later, the father allowed the child to visit the maternal grandparents, but the grandparents refused to return the child to the father. The grandparents filed a deprivation action and sought custody.⁴⁷ The basis for the deprivation claim was the father's failure to provide child support and his failure to visit the child while the mother was alive.⁴⁸ The court held that the grandparents' petition was without merit because such a claim must allege that the child is currently being deprived.⁴⁹ The court ordered the child to be returned to the father immediately.⁵⁰

VI. VISITATION: NONPARENTS

Both appellate courts have addressed cases concerning the exercise of visitation rights in the presence of nonparties. In Brandenburg v. Brandenburg,⁵¹ the supreme court reviewed the propriety of a decree that prevented the father from visiting his children while in the presence of his paramour, even if the father married this woman.⁵² The court first noted that Georgia's public policy favors visitation;⁵³ therefore, any unreasonable restriction on visitation would be contrary to public policy.⁵⁴ The court held that absent a showing that the children would be adversely affected without the restrictions, the restrictions were unreasonable.⁵⁵ In this case, the supreme court found no evidence that the children would be harmed by visiting their father with his paramour present; therefore, the restriction had to be stricken.⁵⁶

In Burns v. Burns,⁵⁷ the court of appeals was presented with a slightly different scenario, but a very different legal argument. In Burns both parties agreed neither parent would exercise visitation when they had an overnight guest to whom they were not married.⁵⁸ After the mother and her female companion entered into a "civil union" in Vermont,⁵⁹ the mother wanted to exercise visitation with her companion present. The father objected and moved to have the mother held in contempt. The trial court held that the mother was not entitled to visitation with her companion present.⁶⁰ The court of appeals also rejected the mother's arguments.⁶¹ The court distinguished Vermont's civil union from marriage.⁶² The parties' agreement did not provide an exception for civil unions, only for marriage.⁶³ The court also noted that even if Vermont allowed same-sex marriages, such a marriage would not be recognized in Georgia.⁶⁴ Because the agreement was entered in Georgia between two Georgia residents and made an order of a Georgia court, Georgia law would govern in defining "marriage."⁶⁵

The court rejected the mother's argument that the trial court's order violated her right to privacy, which she argued included her right to define her own family. The mother, the court held, waived that right when she agreed to the consent decree upon which the order was based.⁶⁶ The court, however, pointed out that the mother did not argue that the agreement was void against public policy,⁶⁷ an argument that was successful in Brandenburg.⁶⁸

VII. Child Support

Appellate decisions concerning child support have typically focused on two areas: child support guidelines⁶⁹ and post-majority support.⁷⁰ This year was no exception. In...